Nassau County Wills

Many people avoid writing a will or any other estate planning documents because they do not want to think about death. Contemplating your mortality is not easy. However, a will is an essential part of planning for your future and the future of your loved ones. In fact, it is not only an essential part of estate planning, it is an important part of financial planning. A will is a legal document in which you leave instructions as to who should receive your assets upon your death. Based on the relationships that you have with your family members and their individual needs, you can decide exactly which assets each person will receive upon your death. In addition, with a will you can also name guardians for your minor children. While a will is an important planning tool, it is not the only estate planning tool that you should consider. To create a will and other estate planning documents that are specifically tailored to accomplish your personal goals, contact an experienced Nassau County Wills Lawyer to guide you through the process.

Why have a will? It is important to have a will as it will let everyone know exactly what you want to happen when you pass away so that your loves will not have to guess. It will tell everyone what assets will go to whom. It will tell everyone who should be named as your minor children's guardian. However, the best reason for having to will to avoid allowing the State of New York to decide what happens to your assets and to your minor children upon your death. Dying without a will is called dying "intestate." If that happens you have no say as to what happens to your assets. Even if your wishes are known to family and friends if they are not memorialized in a properly executed will, then New York intestate succession rules will take precedent over your wishes. NY EPTL § 4-1.1. The result is that people who you wanted to share in your estates, especially if they are not blood relatives, will likely not receive anything. Furthermore, your children may wind up in foster care. In In the Matter of the Appointment of a Successor Guardian for Timothy R.R., 977 N.Y.S.2d 877 (2013), the testator passed away without providing for the guardianship of her developmentally disabled child. A dispute developed between relatives as to whom should serve as guardian and the court had to step in. Executing a will that contemplates your family needs will help avoid conflicts that will delay distribution of assets or result in delay in appointing guardians to relatives who are in great need of support and care.

New York intestacy laws identify only spouses and select blood relatives as possible heirs. If, for example, you are survived by your spouse, but you do not have any surviving children, your spouse will receive your entire estate. If you are survived by both your spouse and your children, then your spouse will receive the first $50,000 of your estate and the balance will be divided between your spouse and your children, with your spouse receiving 50% and the children sharing the other 50%. Your surviving children will share in 100% of your estate if you do not have a surviving spouse. There are also provisions for when parents, grandparents and other blood relatives will share in an estate. NY EPTL § 4-1.1. New York intestacy laws do not allow friends or organizations to be your heirs. Thus, if you want to leave a gift to your best friend, to a trusted employee, or to your favorite charity, you would have to specify these gifts in you well. Otherwise, they will not inherit.

Types of Wills

There are several different types of wills. The type of will that you should use depends on your personal situation, your goals, and your financial situation. Regardless of the type of will you choose, it is important that the will be well-drafted and properly executed according to the laws of New York.

Pour Over Will. A pour over will is used in conjunction with a trust. Upon your death any property that will pass through your will will "pour over" into the trust. The property will be transferred to the trust's beneficiaries.

Holographic Will. A holographic will that is handwritten by the testator and is not witnessed. NY EPTL § 3-2.2. In New York a holographic will is only valid when made during a time of conflict by a member of the United States armed forces or someone accompanying a member of the armed forces during a time of conflict. A holographic will is also valid if made by a mariner at sea.

Nuncupative Will. A nuncupative will is similar to a holographic will in that it is not created using the formalities that are normally required by New York law. It is not written at all, but is oral will. Unlike a holographic will, to be valid a nuncupative must be witnessed by at least 2 people. Like a holographic will, a nuncupative will is only valid if it is created by someone who is a member of the United States armed forces, someone accompanying a member of the armed forces during a time of conflict, or a mariner at sea. NY EPTL § 3-2.2.

Reciprocal Wills. If you and another person, such as your spouse, create 2 separate wills that provide that each of you leaves your entire estates to each other, you have made reciprocal wills. Reciprocal wills typically also provide what happens to the estates if both people die at the same time.

Joint Will. A joint will is created when the two (or more) individuals make just one will that provides that each person would get the survivor's estate.

Codicil. A codicil is a document that amends a previously executed will. Codicils are typically used to add, change or revoke portions of a will. Codicils should only be use to make minor or uncomplicated changes to a will. If the change is major or complicated, then it may be a good idea to execute a new will.

Duties of an Executor

An important consideration to make when contemplating what to include in your will is whom you will name as your executor. The executor should be someone who you trust and who is willing and able to serve as the executor. An executor is the person who will be responsible for your estate administration. The executor will be in charge of such tasks as paying your estate's debts, responding to claims from creditors, and distributing your property. Upon your death, the executor will approach the New York Surrogate's Court and begin the process of having your will probated so that he or she can then distribute your assets.

Once a will is permitted to go to probate, the steps to administering the estate are as follows:

Inventory the Estate. Inventorying your estate involves collecting and appraising your assets. This may involve collecting any money owed to your estate, taking control of bank accounts, and taking control of personal and real property that are part of your estate.

Pay Estate Bills. Once the executor knows the value of your estate, the executor can then start paying any bills owed by that estate. The executor will notify your creditors of your debts and pay all final bills. There may be claims that are not valid. The executor must receive each claim and make sure it is valid before using estate assets to pay it. Part of paying estate debts is paying taxes. A executor must file your final federal, state, and local income tax returns and pay any property taxes that are due. If you are audited after your death, then the executor must respond to the audit and resolve it. Estate bills will also include costs related to administering your estate such court costs, attorney fees and accountant fees if any. The costs of your funerals may also be paid out of estate assets.

Distribute Estate Property. Once all valid claims and debts are paid, the executor then must distribute the remaining estate property to your beneficiaries according to the terms of your will.

Problems During Probate

Probate can be a long and expensive process. Circumstances such as hard-to-find heirs or estate litigation can significantly extend the process and negatively impact the value of the estate. In addition to having a will, creating additional estate planning vehicles such as a trust will help ensure that there are no significant delays in distributing your assets to your designated beneficiaries.

Once you have a will it is important to regularly review it to make sure that it remains consistent with your wishes. It is particularly important to review it after major life events such as the birth of a child or grandchild, marriage, divorce or the death of one of the heirs that you named in the will. It is also a good idea to review if your financial situation significantly changes. To learn more about writing a will, trust, and other estate planning tools, contact Stephen Bilkis and Associates. We will help you develop an overall estate plan that reflects your individual goals. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your estate plan.

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